Why the Temperament Argument Is Another Red Herring

The latest argument against Judge Kavanaugh is that he was overly angry when defending himself against unsubstantiated allegations about which he asserted his own innocence.  Somehow, defending oneself when faced with life destroying accusations is a sign of poor judicial temperament.  Everyone should realize how ridiculous this argument is!

First, the hearing in which the Judge’s temperament is criticized was one where he was fighting for his very life and that of his family.  He was not deciding a legal issue.  If he had been a judge in this case he would have recused himself.  But he himself was on trial – a very public and very unfair trial in which he was essentially being asked to prove his own innocence.  Yet, in asserting that innocence strongly and firmly he is now told he is guilty of bad temperament.  Essentially, this is a catch-22 in which one is guilty if they say they are innocent. 

Secondly, throughout his years on the DC Circuit the Judge has exhibited fairness and judicial temperament of the highest quality in every case that he has decided.  In the first hearing on his nomination, when his qualifications and not his alleged high school antics, were the subject, there was no issue of his temperament, no allegation that he did not have proper judicial temperament.  Indeed, there has been no question of his temperament until he was placed in the untenable position, following weeks of a politically motivated smear campaign, of proving that he is innocent of unsubstantiated accusations.  Even then, the temperament issue did not arise until it was clear from both the testimony of the accusers and further investigation that the allegations would not destroy Kavanaugh as intended.

Third, the attacks on his temperament generally refer to his “performance” and argue that this is not how one should react in the face of such allegations.  How should one act?  That question cannot be answered because we all will act differently in the face of such attacks.  Yet, we are holding the Judge to some sort of standard that is certainly not clear, at least to me:  When one is charged with something that he claims is false, and is faced with more biased questioning from those who participated in the smear campaign, is he supposed to simply sit back and take more, or is he not entitled to feel the very personal wounds of the political assassination attempt and stand up for his own innocence?  Apparently, in the eyes of his opposition, that personal defense from their attacks is enough to disqualify him.  This was a personal attack on the judge and his life; it had nothing to do with his judicial temperament.  He was angry; I suspect most everyone would be angry in this or similar situation.  Did he not have a right to defend himself without being condemned for doing so?

Fourth, we demand that this man act in some one specific way or we will continue to destroy him, but throughout these weeks of smear campaign we have been told that women act in all sorts of ways when they make accusations and we are supposed to accept that without question and bend over backwards to accommodate their behavior, whatever it is.  This certainly sets up two very different standards for two different identity groups. 

The attacks on Judge Kavanaugh’s temperament are just one more weapon that the Democrats are using in their attempt to keep this highly qualified jurist from the bench.  It is one more red herring, designed to distract us from the actual qualifications of this fine jurist.  One should be entitled to defend oneself, to assert one’s own innocence without that defense being used to find new guilt.  No one should be distracted by the opposition’s latest red herring.

Why Every Senator Must Vote YES

Every Senator who cares about this country must vote Yes on the Kavanaugh nomination.

At this point if his nomination fails they are authorizing the sort of smear campaign against any and every future nominee that we have seen play out against Judge Kavanaugh.

What we have is a good nominee who was faced with unsubstantiated accusations the investigation of which (along with the search for dirt) may have found some less than honorable episodes or words in his youth (throwing ice in a bar; perhaps becoming over intoxicated; using sophomoric jokes in yearbook; etc.)  Let’s remember that we are all human, none of us is perfect, and if we search hard enough we will find some less than honorable event in the life of everyone, even a saint.

Now having been accused of poor character and his character smeared beyond belief, we are told he cannot be a judge because of that character.  We are told that righteous indignation in the face of allegations which he claims are false is sufficient to keep him from the Bench – essentially that his claims of innocence are proof of guilt, or should at least disqualify him from this nomination.  This is a catch-22 that is not democratic, not the way this country operates.

We cannot let the screams of hatred and anger intimidate the country into complicity with and authorization of this horrendous political assassination tactic along with its obvious use of troubled individuals for nothing more than political gain.  We cannot let the stall tactics of the democrats continue as they now attack the investigation that they called for.

I understand that Judge Kavanaugh might not be the individual that some would pick for the Supreme Court if their role was to nominate, but that does not mean that he is not highly qualified for the position.  The Senate’s role in confirmation is not one of personal preference.  In its role of advice and consent I would hope that the Senate would look to those legitimate qualifications and not at the distracting political circus and its many red herrings that have been produced over the past few weeks.

I will not rehash all the appalling events and red herrings of that circus.  Let me just point out a few that are most troubling:  the disregard of our Constitution, the rule of law, and core principles of democracy such as innocence until proof of guilt; the callous use of a clearly troubled woman for political purposes and with little if any regard for that woman herself, despite Democrat claims of this being about protecting women; the inflation of this nomination into a representative battle of various identity groups; the complete failure to focus on the qualifications and record of the nominee that are relevant to his service as a justice and failure of the Senate to properly carry out its role of Advice and Consent; the effect that this willingness to use smear tactics reminiscent of the Inquisition, McCarthyism, and Communist Russia will have on the likelihood of qualified individuals entering public service in the future.

The bottom line is that the tactics used by the Democrats to stall this nomination should be unacceptable to every American.  The end does not justify by any means necessary.  To accept that premise is to deny the importance of the principles of our Constitution and our democracy.   It is those principles that allow for an honest and fair opposition, not the Stalinesque tactics that we have seen employed over the past few weeks.  A no vote on Kavanaugh effectively endorses those undemocratic tactics.

We have a qualified candidate for Supreme Court Justice.  Personal preferences aside, there is no reason not to vote YES.  In this instance, that YES vote will further indicate a stand against the unsavory tactics demonstrated by the Democrats over the past weeks. 

Anyone who believes in fairness and justice must now stand up for what is right, renounce the political assault we have been witnessing, and urge the Senate to confirm this highly qualified jurist.

The Play Book Is Truly Frightening

So, here is the play book:  Accuse a good man of poor character, based on unsubstantiated allegations and his denial, then, argue that the man is not qualified because of his poor character.  Continue to demand investigation upon investigation, forever if necessary, until he is eliminated. (Even before its release, the Democrats claim that the FBI investigation is not sufficient and demand more)

I can think of several labels for this:  Catch 22; Salem Witch Trials; McCarthyism; Kafkaesque; Black lynchings in the segregated South; Stalin Show Trials; the Inquisition.  None of these should be part of America in the 21^st Century.

Perhaps the political assassins don’t think we will notice.  They distract us with all sorts of red herrings (A “red herring” is defined as “something, especially a clue, that is or is intended to be misleading or distracting.”).   Failure to produce classified documents; questionable and unfounded allegations; media frenzy about whom to believe and who put on the better “performance.”; juvenile humor in a high school yearbook; claiming outrage of a man who claims his innocence is proof of his poor character; the need to believe women and treat them with special care; etc. etc. 

These questions are red herrings.  The country’s obsession with them is distracting us from the violation and rape of the Constitution that is occurring under our noses as the Democrats turn their role of Advice and Consent into an inquisition designed to serve their own political agenda to the detriment of our Country and with the destruction of a man and his family as some sort of collateral damage.

What we have is a good nominee who was faced with false accusations the investigation of which may have found some less than honorable episodes or words in his youth.  Let’s remember that we are all human, none of us is perfect, and if we search hard enough we will find some less than honorable event in the life of everyone, even a saint. 

What we are witnessing is political assassination by a group of people who are unwilling to accept the fact that they are not in power, that the people of this country elected a president the Democrats do not like and that the election was a signal that their policies were not the direction that the country wanted to go.  This assassination attempt in itself is bad enough, but it sets a precedent for future behavior as well as a warning to anyone who might seek public office in the future.  This smear and scare campaign is detrimental to us all.

It is apparent today that many are willing to ignore the Constitution when they believe that it furthers their political or social agenda.  There are many pretexts for this act of ignoring the constitution, all of which are nothing more than excuses that boil down to justifying “by any means necessary” to get one’s way.  There are small excuses: “this is just a job interview” (of course, questions such as many of those being asked of Kavanaugh would be impermissible and often illegal at a job interview).   There are the rumblings of underlying revenge:  for failure to put Merrick Garland on the bench, for the nomination of a constitutional conservative, simply for the fact that the country elected Donald Trump.   And, some come from the “social justice warriors” who in the case of the Kavanaugh hearing seem to less concerned about the questionable allegations here than in fighting for justice for all women or against all men or at least powerful men.  The problem with ignoring the constitution in this social justice battle is that it is that very constitution that allows those warriors to fight their battle.

Our country is far from perfect, but it is our country’s democracy and its Constitution that allow us to improve ourselves.  It was the 1^st Amendment and its freedoms of speech and assembly that allowed the suffragettes to be heard and gain the vote for women.  Similarly, it was our Constitution that allowed the civil rights movement to arise and become successful.   It is the Constitution that allowed the President to enforce the orders for school desegregation.  Without the freedoms and the rights provided to the people in the Constitution these movements and many others could have been stopped before they even began.

In this era of the 24-hour news cycle, of social media, of the need for instant gratification of every desire, it is hard to have the patience that a democracy requires.  On top of that, people are encouraged in intimidation tactics when, because of those very tactics, even our representatives are afraid to stand up to them and for what is right.  We must not let the screams of hatred and anger from his opposition intimidate us into complicity with and authorization of this horrendous political assassination tactic.  We must remember that we are a country with a constitution and the rule of law and basic concepts including innocence until proof of guilt.

Changes happen, but they happen slowly.  Most importantly, they happen via and because of the rule of law.  Those who want to rectify all the wrongs instantly and without the process that democracy requires are making a huge mistake.  I can perhaps understand the emotional need for instant results, but that need is complicit with those who would change our constitutional democratic republic to some other form.  The red herrings that they conjure and present may seem to be the key issue but they are not.  They distract those who, in the passion and sincerity of their plea for change, fail to look beyond those red herrings and see the bigger picture along with the underlying and real issue of the method by which they are seeking change.

In the case of Judge Kavanaugh the tactics used from the beginning have not been for the people, not for the accusers, not for women, not for justice.  They have been only for political power of those who now find themselves out of power and are hoping that will change with the midterm election.  No one should stand by and let this happen; no one should stand by as if this were OK. We are seeking a qualified jurist.  Judge Kavanaugh is that.  It is because he is that, because he cannot be challenged on his credentials, that the smear campaign was undertaken. 

At this point, anything other than a Yes vote on his nomination sends a frightening message to our leadership – that all the stops are out, all systems go – assassinate at your will, ruin families and lives, all for your own power and with complete and total disregard for the people whom you were elected to represent.  This is not the playbook that we should be using in America.

What the Kavanaugh Hearings Tell Us About America

Looking at the Kavanaugh nomination circus, anyone who has half a brain knows the process is broken, though sadly many choose not to see what they know.  So, what does this tell us – not only about the Kavanaugh hearings, but about America itself?  Let me suggest a few things.

We are losing America as we know it.   The original motto of our Country, adopted by act of Congress, in 1782, is “E pluribus Unum.”  That means “From many, one.”  Even though changed to "In God we trust" in 1956, "e pluribus unum" has been for 200+ years a perfect description of our country:  many diverse people with diverse views come together under one rule of law, set forth in the Constitution.  That Constitution’s guidelines allow us to hold our individual beliefs yet bind us together as one people who believe in liberty and justice for all.  It sets forth principles of due process which provide for fair and equal treatment and which are essential for any form of democracy.   Because we held our Constitution and the rule of law in high esteem, we were able to disagree, sometimes heatedly, about policy and actions of the country while at the same time all believing in and hoping for the success and vitality of our democracy and our country.

We have lost this.  With the rise of identity politics we have devolved into tribes, each concerned primarily with their own interests and not with the good of the country or of the individuals who make up one or another tribe.  We have become willing to ignore the rule of law and the Constitution as tribe fights against tribe.

The Kavanaugh hearing has become about women and the MeToo movement.  Dr. Ford has lost her individual identity to become simply a representative of the tribe of MeToo women.  That tribe seems to be at war with the tribe of white, conservative men as represented by Judge Kavanaugh, or simply the tribe of non-activist judges that one would anticipate a non-liberal president to appoint. 

Dr. Ford is not all women; she is one woman, one individual and this is one alleged event.  This is not a trial of all women vs. all men.  Yet that is what it seems to have become.  And, in so becoming we have thrown out the core democratic principles of due process.  Now, rather than evidence, what matters is who puts on the best show – who is the most “compelling” witness, who cries or does not cry, who is the most sympathetic.  We ask “should a man be brought to tears by what he claims is an unfounded allegation?”  Does that mean he is weak?  What we are doing is painting all men with one brush, not seeing each person as the individual he or she is.  We are one tribe against another.

We see the rise of tribes playing out in our elections as well.  We are told to vote for someone because they are a woman or a Native American or a Black or an Hispanic or an Immigrant or a Republican or a Democrat or a veteran or a Muslim or – the list goes on.  We no longer look for the candidate who is best for America, but the one who will represent the tribe that we may happen to favor.  Similarly, in the Kavanaugh nomination, we have forgotten about the Constitution and the qualifications of a Justice.  It has become nothing more than a battle for tribal power.

Looking at the Kavanaugh hearings, we should be alarmed by how little the Constitution means to so many.  We should be alarmed at how the media, rather than present facts objectively and fully to the people, participate as propaganda machines for one or another tribal interest.  It has almost become a game – whom do you believe?   It is little more than a reality show; I’m surprised they haven’t asked people to call in with their judgment – text 1 for Kavanaugh, 2 for Ford.  This is not justice, this is not due process, this is not representative of what the Constitution and this Country stand for.

The Kavanaugh circus, which has turned into a Show Trial and which ignores the rule of law demonstrates how easily we are able to ignore the Constitution.  This ignoring of process began when the Democrats sat on Dr. Ford’s allegation when they could have brought it forth in closed session during the original hearing.  The Democrats chose not to do so, but instead held it as a weapon, meanwhile finding a lawyer and Democrat operative to advise Ford.  Only when it seemed that Kavanaugh would be confirmed did the Democrats bring the allegation forward – not for Ford, but as a weapon against Kavanaugh.  At that point I wish Sen. Grassley had said, “too bad, too late, hearing closed.  Go bring your allegation in court.”  But he did not.  Because of fear of the MeToo coalition he put the rules aside and reopened the hearing.  Then, when the Democrats weren’t yet ready to present Ford we had delay upon delay upon delay as hearing deadlines came and went for things like her “fear of flying” which we learned from her own testimony is bogus.  Her lawyers wouldn’t agree to the committee's offer to come to Dr. Ford when they were under the impression she feared flying, but again, from Ford’s testimony it appears she was never told this was a possibility.  This all reeks of stall tactics not for justice or concern for Dr. Ford, but as part of the attack on Judge Kavanaugh and the tribe he represents, a tribe which has been declared the enemy of the Democrats.

This ease with which we ignore the rule of law that once held us together sets a very dangerous precedent.  In the Kavanaugh circus we have thrown out the rules because of fear of various tribal interests and emotional hysteria.  There is no due process for either party and the Constitution and rule of law have become a casualty as people justify the use of any means necessary to achieve their end goal of victory for their tribe.   This has become an example of mob rule, not rule of law.  In this case, by following the precedent that the rules don't matter, the vote on Kavanaugh could be delayed forever as the Kavanaugh opponents parade out allegation after allegation and demand investigation after investigation. Like Stalin's Beria, they have their victim, they will continue to search for the crime.  This case is especially troubling because of the way the Democrats have used Ford, demonstrating that they care less about the individual and her anguish than about their own political power.

But, beyond this case, we are seeing a precedent where we are willing to ignore the rule of law – the constitution – to serve political ends.  If we are willing to do that here, then really that document, the Constitution, that binds us all together with rights and responsibilities that apply to all, has lost its meaning.  And when it has lost its meaning then we as a country have lost our meaning – we are no longer one people, but a bunch of tribes each fighting for our own interests. 

This crisis of America did not begin with the Kavanaugh hearing.  It has been building for years – years long before Donald Trump even became a politician.  It is fueled by lack of education about the fundamentals of our government and objective history of our country and its place in the world.  It is fueled by a media that cares less about truth than about ratings and that is more than willing to become a propaganda machine for one or another group.  And, it is boosted by the use of identity politics that raise a tribal identity over the individual and then foment the hatred of one tribe against another.

America is now, however, at a true and important crossroad.  Will we continue on the path of tribalism, or will we stand against it and for the unified America that holds the Constitution and the rule of law as its unifying and guiding principle?  Will we assume that all people of a particular tribe think and act the same, or will we recognize people as the individuals that they are?  Are we willing to sacrifice our individual voices and the reason and fairness of the rule of law to a world where tribe fights tribe by suppressing all opposing voices?  Or, are we able to accept our imperfect democracy and work to save it?  Are we still able to welcome diverse voices and viewpoints all with a common cause of protecting and defending the Constitutional freedoms, rights, and responsibilities that have made America a shining example to the world for over 200 years? 

Now is the time to decide, because once we throw out our common purpose and its guiding principle, then it will be very hard, if not impossible, to get it back.   I truly believe that anyone who cares about this country and the freedom, justice, and fairness for which it stands needs to stand up and speak out now or I really fear what we will become.